Executives lose wrongful dismissal case over ‘sexist’ WhatsApp group

Two sacked company executives involved in ‘laddy banter’ on a WhatsApp group where ‘highly sexist and pornographic’ messages were shared have lost a £300,000 compensation fight for wrongful dismissal.

Paul Wells and Roberto Solari, who worked for PNC Global Logistics Ltd, a business in Surrey, were part of a WhatsApp messaging group where pornographic videos were shared with comments about women they worked with.

Some of the comments were about one woman at the company, named only as ‘D’ in court.

They compared her to a woman seen exposing her vagina in one pornographic clip and a woman seen masturbating in another video, London‘s High Court heard.

Paul Wells (left) and Roberto Solari (right) have lost their legal battle against their former company, Cathay Investments 2 Ltd, after a judge found they were not wrongfully dismissed

The High Court heard that the company the pair worked for, a shipping and airfreight company based in Egham, Surrey, was bought out in 2017 and the new owners, Cathay Investments 2 Ltd, dismissed Mr Wells and Mr Solari in March this year.

Bosses said they were justified in sacking them for ‘gross misconduct’, including the alleged wrongful disclosure of company information.

The WhatsApp messages, which were subsequently discovered when another employee handed in their old work phone, also put them in breach of their contracts, the company said.

The pair subsequently sued their former employers, denying any misconduct and claiming the reasons for their dismissal were trumped up to deprive them of the true value of company shares they said should be worth at least £150,000 to each of them.

But High Court judge Jonathan Simpkiss has now ruled that the sackings and refusal to cough up the full value of the shares was justified.

The contents of the laddy Whatsapp messages would also have amounted to ‘gross misconduct,’ the judge said, commenting: ‘In a modern office environment this is not banter, but wholly unacceptable.’

But he added that it had not been proved on the evidence before the court that the offensive messages continued to be exchanged after the takeover.

However he found that both men were nevertheless guilty of gross misconduct for revealing secret financial information about the company post-takeover to Mr Solari’s dad, Paul Solari, the former chairman of PNC, who was nicknamed ‘Al Cappuccino.’

The company the men worked for, PNC in Surrey, was bought by Cathay Investments 2 Ltd in 2017 and the two men were later sacked

Mr Solari Junior did view pornography in an open office after the takeover, having ‘scrolled through several videos before selecting one,’ the judge also found, although he added that watching the porn by itself would not have amounted to gross misconduct.

The court had heard that the pair each owned a five per cent shareholding in the company when in January 2017 it was bought out by Cathay Investments 2 Ltd, a multinational investments company, with a head office in Horsham, west Sussex.

They signed shareholders agreements and worked for the company under the new owners for two more years after the takeover before telling bosses in January this year they were cashing in their shares, which they say are worth over £300,000 at ‘fair value’.

But in March this year, they were ‘summarily dismissed’ following a disciplinary hearing, meaning that under the terms of the shareholders agreement their shares became almost worthless, and could be bought back by the company for a nominal amount.

Bosses then discovered the controversial WhatsApp group, starting in November 2016, prior to the buyout, which included material the company’s barrister, Edward Levey, said was ‘totally degrading to women’.

A judge found Mr Solari Junior did view pornography in an open office after the takeover, having ‘scrolled through several videos before selecting one,’ the judge also found, although he added that watching the porn by itself would not have amounted to gross misconduct

Sexist banter had been exchanged on the ‘blokey’ social media group, including speculative comments about the ‘private parts’ of two female workmates, the barrister said.

Lawyers for the pair claimed the ‘laddy’ and ‘degrading’ posts and comments stopped with the takeover and that the ‘sole reason for their dismissal’ was for their employer to avoid paying them the full price for their shares.

Giving judgment, Judge Simpkiss said he had seen four days’ worth of messages posted in the group in January 2017.

‘Mr Wells put a pornographic clip on the WhatsApp group on 21 January 2017 and Roberto Solari on 25 January 2017,’ he said.

‘One of these was of a Buzz Lightyear toy holding a man’s penis.’

But whilst slamming the messages exchanged through the group, the judge found that Cathay had not proved they continued on their watch.

‘Various messages and photographs were put on it of a highly sexist, offensive, obscene and pornographic nature,’ he said.

‘Much of the material was sent during working hours using mobile phones belonging to PNC.

‘The background context is that the members work in an open office, in which female employees also work.

‘Some of the comments made on the group were not just of an offensive nature towards women in general, but made specific reference to two female employees working in the same office of an obscene and offensive nature.’

The messages would have tended to undermine the ‘positive and harmonious working environment…creating, encouraging or contributing to a working environment which was intimidating, hostile, degrading, humiliating and offensive for other employees,’ he went on, adding, ‘the whole tenor of the WhatsApp created and encouraged a completely unhealthy office environment.’

But he found that it had not been proved that the messages continued after Cathay came on the scene.

‘The claimants would be in breach by participating in a WhatsApp group distributing the material described,’ he continued.

‘They were obviously embarrassed at the disclosure and agreed that it did not air well in a courtroom.

‘In a modern office environment, this is not banter but wholly unacceptable, particularly when commenting on female colleagues, and this is not something that a senior manager should be part of, nor condone or permit.

‘However, PNC and Cathay have not been able to prove that the group continued after 25th January 2017, as it had before.

‘It is not enough to say that a leopard does not change its spots. Actual proof is required, or at least strong circumstantial evidence from which inferences can be drawn.’

But the judge went on to find for the employer on its claim that the pair wrongfully disclosed confidential company information to Mr Solari’s father, the former chairman of PNC, following the buyout.

Pre-takeover, the male colleagues were part of a group which Mr Levey called ‘the old guard,’ which included Mr Solari senior, the court heard.

Mr Wells and Mr Solari junior’s ‘loyalties were firmly with the ‘old guard’ and not to their employer,’ the judge found.

‘I am satisfied that the claimants shared confidential information with Mr Solari Senior and did not do so unwittingly, or naively,’ he said.

He added: ‘The consequence of all this…was that the claimants could no longer be trusted at all with…confidential information or with acting in the interests of (their employers) and, in particular, in providing financial information for (their employers).

‘The consequence to the claimants is severe,’ he said, adding that the disclosure of the financial info was ‘deliberate and a serious breach of the duty of confidentiality’ due to their employer.

Their employer ‘was entitled to dismiss the claimants summarily’ and to purchase their shares for a nominal amount.

The court heard during the trial that part of the culture in the office had been some of the men in the ‘old guard,’ using coffee-based nicknames to refer to each other.

Mr Solari’s dad, Paul Solari, the former chairman of PNC, was nicknamed ‘Al Cappuccino’, while another senior figure was known as ‘Full-fat Cappuccino’.

Neither Paul Solari nor the other senior figure were involved in the WhatsApp group and were not parties to the case.